Torres-Rivera v. Puerto Rico Electric Power Authority et al, No. 3:2007cv01620 - Document 78 (D.P.R. 2009)

Court Description: OPINION AND ORDER granting 35 Motion for Partial Summary Judgment. Signed by Judge Gustavo A. Gelpi on 2/25/2009. (RS)

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 ALEJANDRA TORRES-RIVERA, 4 Plaintiff, 5 6 7 v. CIVIL NO. 07-1620 (GAG) PUERTO RICO ELECTRIC POWER AUTHORITY, et al., Defendants. 8 9 OPINION AND ORDER 10 11 Plaintiff Alejandra Torres-Rivera brings this action against the Puerto Rico Electric Power 12 Authority ( PREPA ) and others pursuant to 42 U.S.C. § 1983 alleging, inter alia, political 13 discrimination and violation of plaintiff s rights under the First, Fifth, and Fourteenth Amendments.1 14 PREPA moved for summary judgment alleging that the claims are time-barred and, alternatively, 15 that the claims should be dismissed on the merits. For the reasons stated herein, the court GRANTS 16 PREPA s motion for summary judgment (Docket No. 35). 17 I. Standard of Review 18 Summary Judgment is appropriate when the pleadings, depositions, answers to 19 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 20 genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter 21 of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is 22 genuine if it may reasonably be resolved in favor of either party at trial, and material if it 23 possess[es] the capacity to sway the outcome of the litigation under the applicable law. Iverson 24 v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (citations omitted). The moving party bears the 25 initial burden of demonstrating the lack of evidence to support the non-moving party s case. 26 27 28 1 Plaintiff is also claiming damages under Articles 1802 and 1803 of the P.R. Civil Code. See P.R. Laws Ann. Tit. 31 §§ 5141 and 5142. Civil No. 07-1620 (GAG) 2 1 Celotex, 477 U.S. at 325. The nonmoving party must then set forth specific facts showing 2 that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). If the court finds that some genuine 3 factual issue remains, the resolution of which could affect the outcome of the case, then the court 4 must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 5 When considering a motion for summary judgment, the court must view the evidence in the 6 light most favorable to the non-moving party (here, the plaintiff) and give that party the benefit of 7 any and all reasonable inferences. Id. at 255. Moreover, at the summary judgment stage, the court 8 does not make credibility determinations or weigh the evidence. Id. Summary judgment may be 9 appropriate, however, if the non-moving party s case rests merely upon conclusory allegations, 10 improbable inferences, and unsupported speculation. Forestier Fradera v. Municipality of 11 Mayaguez, 440 F.3d 17, 21 (1st Cir. 2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 12 173 (1st Cir. 2003)). 13 II. Relevant Material Facts and Procedural Background 14 Consistent with the summary judgment standard, the court states the facts in the light most 15 favorable to plaintiffs. See Iverson, 452 F.3d at 98. Additionally, in accordance with Local Rule 16 56, the court credits only facts properly supported by accurate record citations. See D.P.R. L.Civ.R 17 56(e). The court has disregarded all argument, conclusory allegations, speculation, and improbable 18 inferences disguised as facts. See Forestier Fradera, 440 F.3d at 21; Medina-Muñoz v. R.J. Reynolds 19 Tabacco Co., 896 F.2d 5, 8 (1st Cir. 1990). 20 Plaintiff has been an employee of PREPA since 2000. From 2000 to February 2003 she held 21 the position of Interim Supervisor of the Occupational Health Nursing Division. After one year of 22 occupying her position as Interim Director, the plaintiff requested to be appointed as a regular 23 employee by way of memoranda dated August 24, 2001 and October 18, 2001. Defendants did not 24 act on plaintiff s request arguing that, because of her employment classification, she was not eligible 25 for a regular employee appointment. Beginning on November 27, 2001, the plaintiff filed a series 26 of administrative complaints officially requesting her appointment. Nothing was done by the 27 defendants regarding plaintiff s requests. On February 28, 2003, the plaintiff was terminated from 28 her position and, as a result of her emotional distress due to her employment situation, she sought Civil No. 07-1620 (GAG) 3 1 medical treatment. On March 1, 2003, the plaintiff was offered the position of Administrative 2 Coordinator of the Electric System at the Palo Seco Station. The position of Administrative 3 Coordinator is not related in any way with the plaintiff s educational and employment background 4 and entailed a degradation in employment classification within PREPA, as well as a reduction in 5 salary. On January 29, 2004, a Job Opening Announcement for the Position of Primary Help and 6 Prevention Section Supervisor was published. Plaintiff applied for said position but another 7 candidate was appointed. On April 2, 2004, Mr. Jorge Cuevas Marengo notified plaintiff, in writing, 8 that he was going to recommend Ms. Sandra Medina Burgos to the position of Primary Help and 9 Prevention Section Supervisor. 10 On March 29, 2005, plaintiff filed a complaint in this court. Civil No. 05-1343. On July 12, 11 2006, the plaintiff moved for voluntary dismissal without prejudice. On July 11, 2007 the complaint 12 in the instant case was filed (Docket No. 1). Plaintiff claims political discrimination and violation 13 of plaintiff s rights under the First, Fifth, and Fourteenth Amendments as well as violations of 14 Articles 1802 and 1803 of the Puerto Rico Civil Code. On April 9, 2008, defendant PREPA filed 15 a motion for summary judgment (Docket No. 35), on January 24, 2009 plaintiff opposed PREPA s 16 motion (Docket No. 59), and on February 20, 2009 PREPA replied (Docket No. 71). 17 III. 18 Discussion A. Time-Barred Claims: Failure to Convert Plaintiff s Appointment from Interim 19 Director to Regular Employee & Termination of Plaintiff as Interim Director 20 and Subsequent Hiring as Administrative Coordinator of the Electric System 21 at the Palo Seco Station 22 In Moran Vega v. Cruz Burgos, 537 F.3d 14 (1st Cir. 2008), the First Circuit explained the 23 statute of limitations period that is used in section 1983 claims in Puerto Rico. The Court held that 24 section 1983 borrows its limitations period from state law and, therefore, carries a one-year statute 25 of limitations in Puerto Rico. Moran Vega, 537 F.3d at 20.2 It is federal law, however, which 26 27 28 2 Section 1983 claims are analogous to claims under Article 1802 of the Puerto Rico Civil Code. Actions under Article 1802 have a one-year statute of limitations. See P.R. Laws Ann. tit. Civil No. 07-1620 (GAG) 4 1 determines when the statute of limitations begins to run. Id. (citations omitted). Section 1983 2 claims generally accrue when the plaintiff knows, or has reason to know, of the injury on which the 3 action is based. Id. (citations omitted). A plaintiff is deemed to know or have reason to know at 4 the time of the act itself and not at the point that the harmful consequences are felt. Id. (citations 5 omitted). In the employment discrimination context, [the First Circuit] has rejected the contention 6 that claims do not accrue until the plaintiff knows of both the injury and the discriminatory animus. 7 Marrero-Gutierrez v. Molina, 491 F.3d 1, 6 (1st Cir. 2007). In the instant case, the clock began 8 running: 1) when defendants rejected plaintiff s request to be appointed as a regular employee after 9 having served as Interim Director; and 2) when plaintiff s position as Interim Director was 10 terminated and she was offered a position as Administrative Coordinator of the Electric System at 11 the Palo Seco Station. It was then that the plaintiff became aware of the injury on which this action 12 is based. These events took place in 2001 and 2003, respectively. Thus, they fall well beyond the 13 one-year statute of limitations for actions under section 1983.3 14 Plaintiff argues that these claims are not time-barred because they are part of continuing 15 violations against the plaintiff. The last claim (the failure to hire plaintiff as Primary Help and 16 Prevention Section Supervisor) is not time-barred given that it took place in 2004 and an action was 17 brought in this court before the one-year statute of limitations expired in 2005.4 However, the court 18 finds that the three events that took place in 2001, 2003, and 2004 are not continuing violations and, 19 therefore, the 2001 and 2003 claims are time-barred. Under the doctrine of continuing violations, 20 a plaintiff can recover for injuries that occurred outside the statute of limitations under certain 21 22 31 § 5298. 23 24 25 3 The claims were also time-barred when the first action, Civil No. 05-1343, was filed in this court in 2005. The court, infra, explains that these claims are not part of continuing violations against the plaintiff, hence, were time-barred when the claim was filed in 2005. 26 27 28 4 That claim was dismissed without prejudice. Civil No. 05-1343. The plaintiff re-filed her claim within a year of the voluntary dismissal of Civil No. 05-1343, thus, the claim is not timebarred in this instance. Civil No. 07-1620 (GAG) 5 1 narrow exceptions. Perez-Sanchez v. Public Building Auth., 531 F.3d 104, 107 (1st Cir. 2008). 2 There are two types of continuing violations: 3 8 Serial violations are composed of a number of discriminatory acts emanating from the same discriminatory animus, each act constituting a separate [actionable] wrong. Plaintiff bears the burden of demonstrating that at least one discriminatory act occurred within the limitations period. It is not enough to show that plaintiff is merely feeling the effects of some earlier discriminatory action. In other words, there is a critical distinction between a continuing act and a singular act that brings continuing consequences in its roiled wake. Systemic violations, on the other hand, need not involve an identifiable discrete act of discrimination transpiring within the limitation period. Rather what must be shown is that plaintiff has been harmed by the application of a discriminatory policy or practice and that such policy continues into the limitations period. 9 Muñiz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994) (citations omitted). Although the name 10 of the doctrine may sound auspicious for late-filing plaintiffs, it does not allow a plaintiff to avoid 11 filing suit so long as some person continues to violate his rights. Perez-Sanchez, 531 F.3d at 107. 12 The continuing violation doctrine is misnamed. . . . The office of the misnamed doctrine is to 13 allow suit to be delayed until a series of wrongful acts blossoms into an injury on which suit can be 14 brought. Morales-Tañon v. Puerto Rico Electric Power Auth., 524 F.3d 16, 18-19 (1st Cir. 2008) 15 (quoting Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 801 (7th Cir. 2008) (Posner, J.)). 16 This court finds that the three events that took place in 2001, 2003, and 2004 are all separate, 17 discrete, actionable acts, therefore, not continuing violations. See, e.g., National R.R. Passenger 18 Corp. v. Morgan, 536 U.S. 101, 112-14 (2002) ( This Court has also held that discrete acts that fall 19 within the statutory time period do not make timely acts that fall outside the time period. [. . .] 20 Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy 21 to identify. Each incident of discrimination and each retaliatory adverse employment decision 22 constitutes a separate actionable unlawful employment practice. ). 23 appointing plaintiff to a permanent position in 2001, and subsequently terminating her in 2003, are 24 all discrete, independent, and actionable acts, in and of themselves. For the abovementioned 25 reasons, the court holds that the 2001 and 2003 claims are time-barred and, therefore, the courts 26 GRANTS defendants motion for summary judgment as to those claims. 4 5 6 7 27 28 PREPA s acts of not Civil No. 07-1620 (GAG) 6 1 B. Failure to Hire Plaintiff as Primary Help and Prevention Section Supervisor 2 (i) Due Process 3 The Due Process Clause of the Fourteenth Amendment provides that no state shall deprive 4 any person of life, liberty, or property without due process of law. U.S. Const. Amend. XIV, § 1. 5 A plaintiff asserting a procedural due process claim must show that she had a property interest as 6 defined by state law and that the defendant, acting under color of state law, deprived him of that 7 property interest without constitutionally adequate process. Santiago-Perez v. State Insurance Fund 8 Corp., 534 F. Supp. 2d 233, 241 (D.P.R. 2007); see also, Morales-Tañon, 524 F.3d at 19 (holding 9 that plaintiff had failed to state a procedural due process claim because he had not alleged a property 10 interest under state law in the opening of an application process for the president s position). In 11 order [t]o have a property interest in a benefit, a person clearly must have more than an abstract 12 need or desire for it. [. . .] He must, instead, have a legitimate claim of entitlement to it. Bd. of 13 Regents v. Roth, 408 U.S. 564, 577 (1972). This court, in the case of Soto Gonzalez v. Rey 14 Hernandez, 310 F. Supp. 2d 418 (D.P.R. 2004), held that where a person applies and is interviewed 15 for a position, but no employment contract is signed and no appointment is made, the person does 16 not have a property interest in that position. See also, Santiago-Perez, 524 F. Supp. 2d at 243 17 (holding that the plaintiff had no property interest in interviewing for a position). In the instant case, 18 the plaintiff applied and was interviewed for the position of Primary Help and Prevention Section 19 Supervisor. She was not appointed to the position and, for that reason, no employment contract was 20 signed. Therefore, this court concludes that she did not have a property interest over the position. 21 The plaintiff has failed to prove one of the two elements of a violation of procedural due process. 22 For that reason, the court GRANTS defendants motion for summary judgment as to the due process 23 claim. Given that there is no property interest in being appointed to an open position, the court need 24 not decide whether the PREPA s appeals process was appropriate to satisfy due process. 25 (ii) Political Discrimination under the First Amendment 26 A plaintiff bringing a political discrimination claim under the First Amendment bears the 27 burden of producing sufficient evidence from which a jury may infer that plaintiff s constitutionally 28 protected conduct was a substantial or motivating factor behind the adverse employment action. Civil No. 07-1620 (GAG) 7 1 Maymi v. Puerto Rico Ports Auth., 515 F.3d 20, 28 (1st Cir. 2008) (citing Acevedo-Diaz v. Aponte, 2 1 F.3d 62, 66 (1st Cir. 1993)). An adverse employment action includes not only a discharge or a 3 demotion, but also a government entity s refusal to promote, transfer, recall after a layoff, or even 4 hire an employee. Morales-Tañon, 524 F.3d at 19 (citing Rutan v. Republican Party of Ill., 497 U.S. 5 62, 79 (1990)). Plaintiff in the instant case claims that her constitutionally protected conduct (being 6 a member of the New Progressive Party ( NPP )) was a substantial factor in not getting hired as 7 Primary Help and Prevention Section Supervisor. Not hiring the plaintiff could constitute an adverse 8 employment action by the defendants. Nonetheless, the plaintiff has failed to introduce any 9 admissible evidence to support her contention that she was discriminated against for being a member 10 of the NPP in violation of the First Amendment. Evidence presented in support or in opposition to 11 a motion for summary judgment must contain admissible information. See 10A Charles Alan 12 Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2738 (Civil 3d 1998). 13 Plaintiff s Statement Under Penalty of Perjury (Docket No. 60, Ex.1) is the only evidence proffered 14 by the plaintiff in support of her contention that she was discriminated against. Paragraph 26 states: 15 [t]hat after receiving the April 2, 2004 letter from Mr. Jorge Cuevas Marengo[,] Ms. Sahudi del 16 Mar Torres Varela informed [the plaintiff] that Mr. Cuevas Marengo told her that the interview 17 process for that position was academic inasmuch as he had instructions from Aileen Feliciano to 18 appoint Sandra Medina Burgos because she was affiliated with the PDP. This is clearly 19 inadmissible hearsay given that the plaintiff is testifying about a statement made by her interviewer 20 to a third party, who in turn communicated it to the plaintiff, and such statement is offered for its 21 truth. Moreover, it is the only piece of evidence proffered by the plaintiff as to this claim. 22 Therefore, the plaintiff has failed to proffer any admissible evidence in support of her claim of 23 political discrimination in violation of the First Amendment. Therefore, the court GRANTS 24 defendants motion for summary judgment as to the political discrimination claim. 25 (iv) Articles 1802 and 1803 of the Puerto Rico Civil Code 26 In any action under Articles 1802 and 1803 the plaintiff has to prove that there was: 1) 27 culpable conduct; 2) that such conduct was the cause of plaintiff s damage; and 3) that there was an 28 actual damage. See P.R. Laws Ann. Tit. 31 §§ 5141 and 5142. Given that the plaintiff has failed Civil No. 07-1620 (GAG) 8 1 to proffer any admissible evidence to show that she was discriminated against, the court cannot find 2 that there was any culpable conduct by the defendants. Therefore, an essential element of a claim 3 under Articles 1802 and 1803 of the Puerto Rico Civil Code cannot be proven. For that reason, the 4 court GRANTS defendants motion for summary judgment as to the Articles 1802 and 1803 claim. 5 IV. 6 7 Conclusion For the reasons discussed above, the court GRANTS PREPA s motion for summary judgment (Docket No. 35). 8 SO ORDERED. 9 In San Juan, Puerto Rico this 25th day of February, 2009. 10 11 S/Gustavo A. Gelpí 12 GUSTAVO A. GELPà United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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